Proportionality

1. Proportionality

2. Targeting I Review I. Military Necessity Two elements: lawful (rules out kreigsraison) and “indispensable” Test – what did commander believe was necessary based on facts, circumstances, and information available at the time (Rendulic Rule) 2. Distinction LOW’s bedrock principle … becoming harder and harder to do 3. Military Objective Application of Military Necessity and Distinction to targeting Targeting board analysis begins with two-part test 1) NLPU makes effective contribution (Nature, Location, Purpose, Use) 2) Capture/Destruction/Neutralization offers concrete/direct military advantage

3. Targeting Board Analysis • Is it a lawful target? • Military objective? 2 part test • 1) Object by its nature, location, purpose or use makes an effective contribution to military action • 2) Total or partial destruction, capture, or neutralization in the circumstances ruling at the time offers a definite military advantage • Misused protected place?

4. Targeting Board Analysis • Any special protections (e.g., requirement to warn) • Is the proposed weapon lawful under the circumstances? • Will the expected collateral damage and incidental injury be “excessive in relation to” the military advantage? • If so, how can collateral damage and incidental injury be minimized? • Does the target and choice of means/method comply with the ROE (which may be more restrictive)?

5. AP I Article 51(5)(a) Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. DISTINCTION

6. AP I: Article 51(5)(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. PROPORTIONALITY

7. Ur Ziggurat, 4000 years old

8. Targeting Board Analysis • Is it a lawful target? • Military objective? 2 part test • 1) Object by its nature, location, purpose or use makes an effective contribution to military action • 2) Total or partial destruction, capture, or neutralization in the circumstances ruling at the time offers a definite military advantage • Misused protected place?

9. Jus in Bello ProportionalityToday

10. Does it Apply in NIACs?

11. What it isn’t: • It is different than human rights proportionality • It is also different than jus ad bellum proportionality (proportionate response)

12. Jus ad Bello Proportionality: • An attack is not to be launched, or is to be cancelled, suspended, or re-planned, if “the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” API, Art,. 51(5)(b) and Arts. 57(2)(a)(iii) and (2)(b) • Note: Art 57 requires pre-calculation of likely collateral damage (Article 57.2(b))

13. Jus ad Bello Proportionality: • With respect to attacks, the following precautions shall be taken:(a) those who plan or decide upon an attack shall:(i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them;(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects;(iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;

14. Jus ad Bello Proportionality: (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated;(c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.

15. Balancing Test Is thisexcessivein relation to that? Concrete and direct military advantage Civilian death, injury, or damage Excessive: “exceeding a normal, usual, reasonable, or proper limit”

16. Jus in Bello Proportionality Three Perspectives • First, proportionality is a factor in the selection of the target. If civilian losses are inevitable, because of either the intermingling of civilian and military targets or the dual character of the target itself, these must be balanced against the military advantage. Second, the means and methods of attack must be assessed. Some weapons are more likely to involve indiscriminate damage than others…Finally, even if these requirements are met, the conduct of the attack itself must not be negligent and involve unnecessary civilian casualties.

17. Three Problems with Proportionality • Determining military advantage • Responsibility for losses Rule encourages defender to leave civilians in place to “cost-out” high value targets • Friction of war: proportionality asks a question no commander can anticipate ~ Hays Parks

18. Standard of Review • The legal standard is whether “a reasonably well-informed person in the circumstances of the actual perpetrator, making reasonable use of the information available to him or her, could have expected excessive civilian casualties to result from the attack.” ~ Prosecutor v. Galić, at para. 58.

19. Standard of Review Must be CLEARLY disproportionate to become a violation. Close issues don’t count.

20. Fallujah • “Even extensive civilian casualties can be acceptable if they are not excessive in light of the concrete and direct military advantage anticipated… • What do you think? See page 277

21. The Plane Bombing a BridgeScenario • Plane on approach • Ready to bomb bridge • Sees a passenger train start to cross bridge

22. Solis “ Precision-Guided Munitions are NOT a LOAC/IHL requirement…” 275. Really?

24. Force Protection • “Application of the principle of proportionality is more easily stated than applied in practice…The law is not clear as to the degree of care required of the attacker and the degree of risk that he must be prepared to take….[T]here may be occasions when a commander will have to accept a higher level of risk to his own forces in order to avoid or reduce collateral damage to the enemy’s civil population.” ~A.V.P. Rogers, “Zero-Casualty Warfare,” 837 Int’l Rev. of the Red Cross 165, 169 (March 2000).

26. Stopping Point for Proportionality Class – Resume in GWOT

27. Jus in Bello Proportionality Application in COIN? • “Any use of force generates a series of reactions.” • “Counterinsurgencies should calculate carefully the type and amount of force to be applied and who wields it for any operation. An operation that kills five insurgents is counterproductive if collateral damage leads to the recruitment of fifty.”

28. Jus in Bello Proportionality Application in COIN? • "In this type of war, when the objective is not the enemy's defeat but the people's success, less really is more," Mullen said. "Each time an errant bomb or a bomb accurately aimed but against the wrong target kills or hurts civilians, we risk setting our strategy back months, if not years.“ • Embedded in Mullen's new doctrine is the somewhat controversial notion that troops should assume greater physical risk in order to protect innocent civilians in places such as Afghanistan and Iraq. "We protect the innocent," Mullen said. "It is who we are.“ • CJCS Calls for More Restraint in War, Wash Post, 5 Mar 2010

29. Proportionality – U.S. Balancing Test Current Test (Conventional Warfare) Proposed Test (Counterinsurgency Warfare) Military Advantage re-defined as “safety and security of the local population” Collateral damage weighed twice (offset to military advantage as well as against it) Collateral damage rejected as neither unavoidable nor incidental • Military Advantage defined as “submission of the enemy” • Collateral damage weighed once (against military advantage) • Collateral damage accepted as unavoidable and incidental

30. Operation Cast Lead “Consent and Advice”

31. Analysis • No ROE – Shoot 1st. • Use of Human Shields to enter buildings • Property vandalized • Firing at Water Tanks • Use of White Phosphorous recklessly • Ill-disciplined attitude towards civilians

32. Analysis • Shooting of old man with flashlight? • Forcing civilians to enter houses w/ gun on their soldiers • Sending civilians into a house to tell others to evacuate • Calling via Phone to tell people to leave

33. The Police Force • What are the operative facts? • Does tweaking them at all matter?

34. Israel Response • Whereas members of a civilian police force that is solely a civilian police force, who have no combat function are not considered combatants under the Law of Armed Conflict, international law recognises that this principle does not apply where police are part of the armed forces of a party. In those circumstances, they may constitute a legitimate military target. In other words, the status of the Palestinian ―police under the Law of Armed Conflict depends on whether they fulfilled combat functions in the course of the armed conflict. The evidence thus far is compelling that they are.

35. Goldstone Report (Sep 09) • 1720. The Mission also concludes that Israel, by deliberately attacking police stations and killing large numbers of policemen (99 in the incidents investigated by the Mission) during the first minutes of the military operations, failed to respect the principle of proportionality between the military advantage anticipated by killing some policemen who might have been members of Palestinian armed groups and the loss of civilian life (the majority of policemen and members of the public present in the police stations or nearby during the attack). Therefore, these were disproportionate attacks in violation of customary international law. The Mission finds a violation of the right to life (Article 6 ICCPR) of the policemen killed in these attacks who were not members of Palestinian armed groups.

36. Operation Cast Lead Issues • Military objective determination • Proportionality determinations • Role of the International Law Division • Reputation • Context • International Law • Development through violations?

38. Operation Cast Lead “This story attests to the considerable flexibility that the laws of war allow, particularly the tests of proportionality--the damage inflicted on military targets and collateral damage to civilians. Reisner cautions against cases in which the judgment of the legal expert might replace the moral judgment of the commander, who in the last analysis bears responsibility for his actions.”

39. Proportionality Concluding Observations • DOD Report • By placing a heavy burden on attackers, the modern LOW creates a perverse incentive for defenders to violate distinction and wage “lawfare” • Jus in Bello Proportionality Today • Different than human rights and jus ad bellum proportionality • Three perspectives: 1) Target, 2) Means/Method, 3) Conduct (timing, warning etc.) • Requires commander to balance “force protection” concerns with collateral damage concerns • Standard: would a reasonable commander in the commander’s circumstances view the incidental effects as excessive compared to the concrete and direct military advantage (requires “complete good faith”) • Different application in COIN? “A slightly ambiguous protective provision is preferable to none at all” ~ Solis

40. LAWFARE? • What do you think?